EXHIBIT 10.9
THIRD ADDENDUM TO
EMPLOYMENT AGREEMENT
THIS THIRD ADDENDUM TO EMPLOYMENT AGREEMENT (this "Addendum") is entered
into as of the 15 day of October, 2001 between and among AMERICA FIRST MORTGAGE
ADVISORY CORPORATION, a Maryland corporation with its office at 399 Park Avenue,
36th Floor, New York, New York 10022 (the "Company"), AMERICA FIRST MORTGAGE
INVESTMENTS, INC., a Maryland corporation ("MFA"), and WILLIAM S. GORIN, an
individual residing at 1365 York Avenue, New York, New York 10021.
W I T N E S S E T H :
WHEREAS, the Employee entered into an employment agreement, dated July 11,
1997, with America First Companies LLC, which was assigned to and assumed by the
Company, and amended by an Addendum to Employment Agreement dated January 1,
2000 and a Second Addendum to Employment Agreement dated May 23, 2001 (the
employment agreement as modified by the two addendums hereinafter referred to as
the "Agreement').
WHEREAS, the Company and the Employee now desire to modify further the
terms of the Employee's employment under the Agreement in anticipation of the
merger of the Company with and into MFA.
NOW THEREFORE, the parties hereby covenant and agree as follows:
1. Effective Date. This Addendum shall become effective upon the later to
occur of (i) January 1, 2002, and (ii) the effective date of the merger of the
Company into MFA (the "Merger"). Upon the effective date of the Merger, the
Agreement as amended by this Addendum and all rights and obligations of the
Company thereunder shall be assumed by MFA.
2. Salary. The Employee's annual base salary shall be Two Hundred Thousand
Dollars ($200,000).
3. Annual Bonus. The Employee's annual bonus shall be that portion of an
aggregate bonus base for the Company's three most senior executives of not less
than $225,000 as shall be determined by the Company's chief executive officer in
his sole discretion.
4. Equity Raise Bonus. The Employee shall be entitled to an "equity raise
bonus" equal to a portion of a bonus pool of .65% of any new net equity raised
by the Company, such portion to be determined by the Company's chief executive
officer in his sole discretion.
5. Change in Control Payments. In the event of (a) the termination of
Employee's employment by the Company without Cause that occurs both within two
months before and in anticipation of a change in control as defined in
Attachment I (a "Change in Control"), (b) the resignation of his employment by
Employee for any reason within three months following a Change in Control, or
(c) the termination of Employee's employment by the Company other than for Cause
or the Employee's resignation of his employment for Good Reason, as defined in
Attachment II, within twelve months following a Change in Control,
(i) the Company shall pay to Employee in a lump sum, within 30 days
following the termination of employment, an amount equal to 300% of the sum of
Employee's then current base salary plus Employee's bonus for the immediately
preceding year;
(ii) all of Employee's outstanding stock options shall immediately vest in
full and become exercisable for a period of one year from the date of
termination but in no event beyond the date on which the option would have
expired had the Employee's employment not terminated.
(iii)Employee shall continue to participate in all health, life insurance,
retirement and other benefit programs at the Company's expense to the same
extent as though the Employee's employment had not terminated.
The Employee, in his sole and absolute discretion, may elect to reduce any
such payment in order to avoid imposition of the excise tax under Section
4999(a) of the Internal Revenue Code of 1986, as amended.
This paragraph 5 shall replace Section 10 of the Agreement.
6. Non-Compete. Employee will not, without the prior written consent of
the Company, manage, operate, control or be connected as a stockholder (other
than as a holder of shares publicly traded on a stock exchange or the NASDAQ
National Market System, provided that the Employee shall not own more than five
percent of the outstanding shares of any publicly traded company) or partner
with, or as an officer, director,
employee or consultant of, any Residential Mortgage REIT for a period of one
year following termination of his employment with the Company. During such one
year period, the Employee shall not solicit any employees of the Company to work
for any Residential Mortgage REIT. The Employee shall keep confidential all
materials, files, reports, correspondence, records and other documents ("Company
Materials") used, prepared or made available to him in connection with his
employment by the Company and which have not otherwise been made available to
the public, and upon termination of his employment shall return such Company
Materials to the Company. The Employee acknowledges that the Company may seek
injunctive relief or other specific enforcement of its rights under this
Paragraph 6.
7. Equity Raise for MFA/MAC. In the event that an equity raise for MFA/MAC
is effected subsequent to the date on which the agreement of Merger was executed
and prior to the effective date of this Addendum, and as a consequence thereof
the Employee is entitled to receive a "Performance Bonus for Executing a Capital
Raise for MFA/MAC" pursuant to the Agreement and the schedule entitled "America
First Companies, LLC Annual Incentive Bonus Plan for 2001" attached thereto (the
"Bonus Schedule") or any amendment to or replacement for such Bonus Schedule,
then
(i) the Company shall be responsible for paying a pro rata portion of the
bonus payable to the Employee, of which the numerator is the number of calendar
months, partial or complete, ending following the equity raise but prior to the
effective date of this Addendum, and the denominator is 12; and
(ii) MFA shall be responsible for paying the balance of the bonus in
quarterly installments, such that the bonus is paid in full by the last business
day of the 12th month ending following the equity raise.
8. Full Time Employment. Employee shall devote himself during business
hours on a full time basis to his duties under the Agreement.
9. Remaining Terms Unchanged. The parties agree that all terms and
conditions of the Agreement not specifically amended by the Addendum shall
remain in full force and effect.
IN WITNESS WHEREOF, the Company, MFA and the Employee have executed this
Addendum as of the date first above written: AMERICA FIRST MORTGAGE ADVISORY
CORPORATION
By: /Stewart Zimmerman/
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AMERICA FIRST MORTGAGE INVESTMENTS, INC.
By: /Stewart Zimmerman/
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/William S. Gorin/
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William S. Gorin
Attachment I
Change in Control. A "Change in Control" shall mean any one or more of the
following:
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act")), other than
the Employee or an entity controlled, directly or indirectly, by the Employee
alone or in concert with others, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of MFA representing more than thirty percent (30%) of the combined
voting power of the then outstanding securities of MFA; or
(ii) there has been a tender or exchange offer, merger, consolidation or
equivalent combination involving MFA after which either (a) more than fifty
percent (50%) of the voting stock of the surviving entity is held by persons
other than former stockholders of MFA or (b) persons who were directors of MFA
before such event shall cease to constitute a majority of the Board of Directors
of MFA or any successor entity after such event;
(iii) there has been a sale or other disposition of all or substantially
all the assets of MFA.
Attachment II
Resignation for Good Reason. "Good Reason" shall mean:.
(a) a material diminution in Employee's title, duties or responsibilities;
(b) relocation of Employee's place of employment without his consent
outside the New York City metropolitan area;
(c) the failure of MFA to pay within five (5) business days any payment
due from MFA;
(d) the failure of MFA to pay within a reasonable period after the date
when amounts are required to be paid to Employee under any benefit programs or
plans; or
(e) the failure by MFA to honor any of its material obligations herein.